REL: March 10, 2023 

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections 

may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2022-2023

_________________________

CL-2022-1069

_________________________

C.L.R.

v.

M.B.M. and R.M.

Appeal from Marshall Juvenile Court

(CS-22-900023)

MOORE, Judge.

C.L.R. ("the former husband") appeals from a summary judgment 

entered by the Marshall Juvenile Court ("the juvenile court") in an action 

to establish the paternity of G.M. ("the child"), a child born during the 
CL-2022-1069

2

marriage of M.B.M. ("the mother") to R.M. ("the current husband"). We 

reverse the judgment and remand the case with instructions.

Background and Procedural History

On February 18, 2022, the former husband filed a complaint 

requesting that the juvenile court establish his paternity of the child and 

render a custody and child-support determination relating to the child. 

In the complaint, which named only the mother as the defendant, the 

former husband alleged under oath that he and the mother had been 

married from September 29, 2014, to January 29, 2015. The former 

husband further alleged that the child was conceived by the parties 

during their postmarital relationship and was born on April 28, 2021. At 

the time of the birth of the child, the mother was married to the current 

husband, who was designated as the father of the child on her birth 

certificate. The mother informed the former husband that he was 

actually the biological father of the child approximately seven months 

after the birth of the child. The former husband met the child in 

November 2021, and, following that meeting, he had many unsupervised 

visits with the child and paid the mother weekly child support.
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On March 18, 2002, the mother filed an answer to the complaint, 

denying all the material allegations of the complaint. On March 29, 2022, 

the former husband filed a motion for genetic testing. The juvenile court 

originally granted that motion on March 30, 2022, but it subsequently set 

aside the order granting the motion the next day after the mother 

objected. On April 27, 2002, the mother submitted to the juvenile court 

an affidavit of the current husband. In his affidavit, the current husband 

stated that he and the mother had conceived the child, that he had 

married the mother on April 17, 2021, 11 days before the birth of the 

child, that the child carried his last name, that he had executed a formal 

acknowledgment of paternity of the child at the hospital following the 

birth of the child, that he had taken the child into his home, that he was 

the presumed father of the child, and that he would persist in his 

presumption of paternity until his death.

The former husband responded to the current husband's affidavit 

by filing a motion requesting that the juvenile court allow him to amend 

the complaint. In his motion, the former husband argued that he could 

have the acknowledgment of paternity executed by the current husband 
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rescinded through the underlying paternity action. The former husband

agreed that the current husband was a presumed father of the child, but 

the former husband asserted that he was also a presumed father of the 

child by virtue of his having established a father-child relationship with 

the child, having held the child out as his own, having been referred to 

as the father of the child in some medical records, and having provided

the child with financial support; he also asserted that was persisting in 

his presumption of paternity. The former husband contended that, in the

situation as it existed, the juvenile court should resolve the conflicting 

presumptions of paternity and adjudicate which of the two men is the 

legal father of the child.

On May 12, 2022, the juvenile court entered an order denying the 

request for genetic testing and ordering the former husband to amend 

the complaint to add the current husband as a defendant. The order then 

states:

"Once added and served, [the current husband] may request 

a hearing on the issue of whether or not [the current husband] 

has persisted in his paternity of [the child]. If the Court finds 

that [the current husband] has persisted in his paternity, the 

case shall be dismissed. However, if the Court finds that [the 
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5

current husband] has not persisted in his paternity of [the 

child], [genetic testing] shall be ordered at that time."

On May 20, 2022, the former husband amended his complaint to add the 

current husband as a defendant and to verify under oath the factual 

allegations setting forth his version of the conception of the child and the 

establishment of his relationship with the child, who, he said, he had 

brought into his home until the mother stopped allowing him to visit with 

the child. Additionally, the former husband asserted that the mother had 

informed him that the current husband had had a vasectomy before the 

conception of the child. The former husband also requested that the 

juvenile court rescind the acknowledgment of paternity executed by the 

current husband.

On June 9, 2022, the current husband filed an answer denying the 

material allegations of the amended complaint and asserting his claim to 

the paternity of the child. On August 15, 2022, the mother and the 

current husband jointly filed a motion to set the case for trial or, in the 

alternative, to dismiss the case. The former husband filed a response to 

the motion; the response contained exhibits, including a badge issued by 

a local hospital identifying him as a "parent" of the child, text messages 
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from the mother acknowledging his paternity of the child and agreeing 

to genetic testing, and photographs of him caring for the child. The 

former husband also filed his affidavit in which he set forth that, after he 

and the mother divorced, they had maintained a relationship and had 

conceived the child, a fact that he did not know until November 2021 

when he was so informed by the mother, who, he said, also told him that 

it was impossible for her to have conceived the child with the current 

husband. The former husband attested that, after learning of his 

paternity, he had taken the child into his care, had held the child out as 

his own natural child, had paid the mother child support, had visited the 

child at the hospital, and had taken the child into his own home until 

May 25, 2022. The former husband maintained that he was persisting in 

his paternity of the child.

On September 21, 2022, the juvenile court conducted a hearing on 

the motion to dismiss. At the start of the oral argument, counsel for the 

current husband acknowledged that the motion to dismiss was, in 

substance, a motion for a summary judgment. The parties then 

proceeded to argue the merits of the motion for a summary judgment. 
CL-2022-1069

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The juvenile court entered a judgment on September 29, 2022 ("the final 

judgment"), providing "[c]ase is hereby dismissed." The former husband 

filed a postjudgment motion to alter, amend, or vacate the final judgment 

on October 5, 2022. The juvenile court held a hearing on the 

postjudgment motion on October 12, 2022; on that same date, before 

awaiting a ruling on the postjudgment motion, the former husband filed 

a notice of appeal of the final judgment, which notice was held in 

abeyance until the date of disposition of the postjudgment motion. See

Rule 4(a)(5), Ala. R. App. P. The notice of appeal became effective on 

October 19, 2022, when the postjudgment motion was denied by 

operation of law. See Rule 1(B), Ala. R. Juv. P.; and J.J. v. R.R., 159 So. 

3d 84, 85 (Ala. Civ. App. 2014) (holding that "CS" cases are governed by 

the Alabama Rules of Juvenile Procedure, including Rule 1(B) providing 

that a postjudgment motion may be pending for only 14 days unless that 

period is extended in accordance with the rule). The juvenile court 

purported to enter an order denying the postjudgment motion on 

November 7, 2022, but that order was a nullity. See J.S. v. S.W., 702 So. 

2d 169, 171 (Ala. Civ. App. 1997).
CL-2022-1069

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Issue

Although the final judgment from which this appeal arises could be 

interpreted as granting a motion to dismiss, the final judgment actually 

granted the mother and the current husband's motion for a summary 

judgment because the juvenile court considered evidence outside of the 

pleadings. See Rule 12(b), Ala. R. Civ. P. (providing that, when a court 

considers evidence outside of the pleadings when ruling on a motion to 

dismiss, the motion is converted into a motion for a summary judgment); 

D.K. v. S.M.S., 297 So. 3d 466, 469 (Ala. Civ. App. 2019) (applying the 

reasoning underlying Rule 12(b) in a juvenile case). Thus, the issue on 

appeal is whether the juvenile court erred in entering the final judgment 

against the former husband on his claim to establish the paternity of the 

child.
CL-2022-1069

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Standard of Review

An appellate court reviews a summary judgment de novo. S.J.S. v.

B.R., 949 So. 2d 941, 944 (Ala. Civ. App. 2006). A summary judgment 

may be entered only "if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law." Rule 

56(c)(3), Ala. R. Civ. P. The burden is on the party moving for a summary 

judgment to make a prima facie showing that he or she is entitled to a 

summary judgment by presenting evidence that, if uncontroverted at 

trial, would entitle the moving party to a judgment as a matter of law. 

See Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999).

Analysis

Section 26-17-204(a)(1), Ala. Code 1975, provides, in pertinent part, 

that "[a] man is presumed to be the father of a child if ... (1) he and the 

mother of the child are married to each other and the child is born during 

the marriage." In this case, the child was born 11 days after the mother 

married the current husband, making him a presumed father of the child, 
CL-2022-1069

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as acknowledged throughout this litigation by the former husband. 

Section 26-17-607(a), Ala. Code 1975, provides, in pertinent part: "If the 

presumed father persists in his status as the legal father of a child, 

neither the mother nor any other individual may maintain an action to 

disprove paternity."

Having been advised through the pleadings and motions of the 

parties of the status of the current husband as a presumed father under 

§ 26-17-204(a)(1), the juvenile court entered an order on May 12, 2022, 

indicating that, once the current husband was added as a defendant in 

the paternity proceedings and properly served, the juvenile court would 

conduct a hearing to determine whether the current husband was 

persisting in his claim to the paternity of the child. The juvenile court 

indicated in the May 12, 2022, order that, if the current husband was 

persisting in his claim to paternity, it would dismiss the case. The 

current husband subsequently appeared in the case and filed a verified 

answer in which he indicated that he was persisting in his claim of 

paternity of the child, affirming the statement that he had made in his 

affidavit that had been submitted to the juvenile court on April 27, 2022.
CL-2022-1069

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In their motion for a summary judgment filed on August 15, 2022, 

the mother and the current husband cited the May 12, 2022, order, 

referred the juvenile court to the verified answer filed by the current 

husband, and requested, among other things, that the juvenile court 

dismiss the case on the ground that it was uncontroverted that the 

current husband was persisting in his claim of paternity of the child. The 

mother and the current husband did not cite any legal authority to 

support the dismissal, but it is apparent that they were relying on § 26-

17-607(a).

In Ex parte Kimbrell, 180 So. 3d 30 (Ala. Civ. App. 2015), this court 

recognized that, when a child has two or more presumed fathers, § 26-17-

607(a) does not apply. In that case, Amanda Kimbrell married John 

Herbert in 1996. In 1997, Amanda left Herbert without divorcing him. 

In 2004, she began a relationship with Denny Kimbrell. On February 24, 

2006, she gave birth to a child. Denny was named as the father of the 

child on the birth certificate and raised the child with Amanda. Denny 

and Amanda purported to marry one another seven months after the 

birth of the child, but the marriage was invalid because Amanda was still 
CL-2022-1069

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married to Herbert. In 2014, Amanda and Denny commenced a divorce 

action, which was converted into an annulment action due to the 

invalidity of their purported marriage. Denny sought a paternity 

determination regarding the child born of his and the mother's

relationship. The Walker Circuit Court determined that Denny was a 

presumed father of the child "'pursuant to Sections 26-17-204(a)(4)(B) & 

(C) and 26-17-204(a)(5), Ala. Code 1975,'" 180 So. 3d at 33, who was 

persisting in his status as the legal father of that child and that, pursuant 

to § 26-17-607(a), Amanda could not dispute his claim. Amanda filed a 

petition for the writ of mandamus seeking to have the paternity 

determination vacated.

On mandamus review, this court noted that, "[u]nder the unique 

facts of this case, it appears that, pursuant to the applicable Alabama 

statute, [§ 26-17-204, Ala. Code 1975,] the child had two presumed 

fathers." 180 So. 3d at 34. This court emphasized that, when there are 

two presumed fathers, § 26-17-204(b), Ala. Code 1975, governs the 

determination of which of the two men shall be adjudicated the legal 

father. Section 26-17-204(b) provides, in pertinent part: "In the event 
CL-2022-1069

13

two or more conflicting presumptions arise, that which is founded upon 

the weightier considerations of public policy and logic, as evidenced by 

the facts, shall control."1 Amanda asserted that, pursuant to § 26-17-

607(a), Denny could not maintain the paternity action because Herbert 

was persisting in his claim of paternity. This court rejected that 

argument, concluding that, even if the evidence had shown that Herbert 

was persisting in his claim of paternity, that fact alone would not prevent 

Denny from maintaining the paternity action because Denny was also a 

presumed father who was persisting in his status as the legal father of 

the child at issue. This court held that, in circumstances in which two 

presumed fathers are persisting in their claims to paternity of a child,

the trial court must apply § 26-17-607(b) to resolve the dispute. This

court recognized that the Walker Circuit Court had cited § 26-17-607(a) 

in concluding that Amanda could not dispute Denny's paternity of the 

child at issue, but we determined that, in substance, the Walker Circuit 

Court had actually, and correctly, applied § 26-17-204(b) by determining 

1Section 26-17-607(b), Ala. Code 1975, contains language identical 

to the language in § 26-17-204(b); thus, our analysis of § 26-17-204(b) 

applies equally to § 26-17-607(b).
CL-2022-1069

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that Denny, who had been the only father the child at issue had ever 

known, had a weightier claim to paternity under the circumstances. 

In D.I. v. I.G., 262 So. 3d 651, 659 (Ala. Civ. App. 2018), this court, 

citing Ex parte Kimbrell, explained that "the field of operation of § 26-17-

204(b)[, Ala. Code 1975,] continues to be, as always, the determination of 

the weightier presumption of paternity when the facts yield two or more 

potential presumed fathers." (Emphasis added.) Likewise, in Ex parte 

A.A., 342 So. 3d 209, 214-15 (Ala. Civ. App. 2021), this court, again 

relying on Ex parte Kimbrell, explained that § 26-17-607(a) applies only 

to prevent the maintenance of a paternity action when a child has only 

one presumed father who persists in his status as the legal father of the 

child. When, however, more than one man qualifies as a presumed 

father, § 26-17-204(b) requires a juvenile court to allow the paternity 

action to proceed for the purpose of determining which of the two 

presumed fathers shall be adjudicated the legal father of the child based

on the factors set forth therein. See also H.A.A. v. B.J.J., [Ms. 2200928,

June 10, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022) (recognizing that,

when two men are both presumed fathers, § 26-17-204(b) applies). 
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Admittedly, this court has not consistently followed the reasoning in Ex 

parte Kimbrell, see, e.g., R.D. v. S.S., 309 So. 3d 146 (Ala. Civ. App. 2020) 

(requiring biological father of child at issue to prove that husband of 

mother was not persisting in a claim of paternity before allowing 

evidentiary proceeding under § 26-17-204(b)); J.O.J. v. R.M., 205 So. 3d 

726 (Ala. Civ. App. 2015) (denying appellant an opportunity to prove his 

status as a presumed father and to an evidentiary hearing under § 26-

17-204(b) on the ground that the husband of the mother in that case was 

persisting in his status as legal father of child at issue), but the weight of 

authority provides that, in cases involving two or more presumed fathers, 

§ 26-17-204(b) controls and not § 26-17-607(a). Consequently, the fact 

that one presumed father persists in his claim of paternity does not 

prevent another presumed father from maintaining a paternity action.

In their motion for a summary judgment, the mother and the 

current husband presented uncontroverted evidence indicating that the 

current husband was a presumed father of the child who was persisting 

in his claim to the legal status of the father of the child, but that 

uncontroverted evidence does not necessarily entitle them to a dismissal 
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of the underlying paternity action as a matter of law. If the former 

husband is also a presumed father, under Ex parte Kimbrell and its 

progeny, the juvenile court would be required to allow the paternity 

action to proceed to conduct an evidentiary hearing and make a paternity 

adjudication in accordance with § 26-17-204(b). 

The mother and the current husband did not present any evidence 

designed to prove that the former husband is not a presumed father of 

the child. On the other hand, the former husband maintained that he 

should be considered a presumed father of the child under § 26-17-

204(a)(5), Ala. Code 1975, which provides, in pertinent part:

"(a) A man is presumed to be the father of a child if:

"....

"(5) while the child is under the age of 

majority, he receives the child into his home and 

openly holds out the child as his natural child or 

otherwise openly holds out the child as his natural 

child and establishes a significant parental 

relationship with the child by providing emotional 

and financial support for the child ...."

The former husband presented evidence indicating that, after learning of 

his biological connection to the child, he had visited with the child 
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unsupervised in his home, had publicly acknowledged his paternity of the 

child, and had provided the child with care, emotional support, and 

financial support. That evidence, which was not disputed by the mother 

or the current husband, could establish that the former husband is also 

a presumed father of the child. Thus, we hold that the juvenile court 

should have afforded the former husband an evidentiary hearing for the 

purposes of establishing his status as a presumed father of the child and, 

if successful, for litigating whether he or the current husband should be 

adjudicated the legal father of the child based on the factors set forth in 

§ 26-17-204(b). The juvenile court committed reversible error by 

dismissing the case instead of following that procedure.

We find no other valid legal basis in the record for affirming the 

summary judgment. See Liberty Nat'l Life Ins. Co. v. University of

Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003)

(permitting an appellate court to "affirm the trial court['s judgment] on 

any valid legal ground presented by the record, regardless of whether

that ground was considered, or even if it was rejected, by the trial court"). 

The mother and the current husband did not assert that they were 
CL-2022-1069

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entitled to a judgment as a matter of law based on the status of the 

current husband as an acknowledged father. Even if they had, that 

argument would not have prevailed. An acknowledgment, in compliance 

with the form set forth in § 26-17-302 and § 26-17-312, Ala. Code 1975,2

2Section 26-17-302, Ala. Code 1975, provides:

"(a) An acknowledgment of paternity must:

"(1) be in a record filed with the Alabama 

Office of Vital Statistics;

"(2) be signed, and notarized, under penalty 

of perjury by the mother and by the man seeking 

to establish his paternity;

"(3) state that the child whose paternity is 

being acknowledged:

"(A) does not have a presumed 

father or the man executing the 

acknowledgment is the presumed 

father; and

"(B) does not have another 

acknowledged or adjudicated father;

"(4) state whether there has been genetic 

testing and, if so, that the acknowledging man's 

claim of paternity is consistent with the results of 

the testing; and
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when executed by both the mother and the acknowledged father is 

"considered a legal finding of paternity" of the child when properly filed 

with the Alabama Office of Vital Statistics. See § 26-17-305, Ala. Code 

1975. The mother and the current husband failed to present any evidence 

indicating that the form complied with the applicable statutes, that the 

mother had executed the acknowledgment in addition to the current 

"(5) state that the signatories understand 

that the acknowledgment shall be considered a 

legal finding of paternity of the child and that a 

challenge to the acknowledgment is permitted only 

as provided in this chapter.

"(b) A presumed father may sign an acknowledgment of 

paternity which must be notarized."

Section 26-17-312, Ala. Code 1975, provides:

"(a) To facilitate compliance with this article, the 

Alabama Department of Human Resources shall prescribe 

forms for the acknowledgment of paternity. The affidavit shall 

include the Social Security number and current address of 

each parent, a listing of the rights and responsibilities of 

acknowledging paternity, including the duty to financially 

support the child, and instruction for filing the affidavit with 

the Office of Vital Statistics.

"(b) A valid acknowledgment of paternity is not affected 

by a later modification of the prescribed form."
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husband, or that the acknowledgment had been properly filed, so the 

record contains no evidence indicating that the acknowledgment, which, 

we note, was not filed with the juvenile court, has any legal effect. 

Moreover, the Alabama Uniform Parentage Act, § 26-17-101 et seq., Ala. 

Code 1975, does not provide that an acknowledgment of paternity 

precludes another man from disproving the paternity of an acknowledged 

father. To the contrary, a party that is not a signatory to the 

acknowledgment "may maintain a proceeding at any time after the 

effective date of the acknowledgment if the court determines that it is in 

the best interest of the child." § 26-17-609(b), Ala. Code 1975. Under the 

circumstances of this case, we cannot say that the acknowledgment 

entitles the mother and the current husband to a judgment as a matter 

of law. 

Conclusion

For the foregoing reasons, the final judgment entered by the 

juvenile court is reversed and the case is remanded to the juvenile court. 

On remand, the juvenile court is instructed to vacate the final judgment, 

to conduct an evidentiary hearing to determine whether the former 
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husband is a presumed father of the child and, if so, whether he or the 

current husband should be adjudicated the legal father of the child in 

accordance with § 26-17-204(b), and to take such other actions as are 

consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.